Liability for online activities in academia

“Get out of jail free” - liability for online activities in academia
Are professors liable for student misconduct in classroom-mandated activities? If so, how can professional liability be limited?

These questions arise from Michael J. Bugeja’s article “Second Thoughts About Second Life”. Bugeja recounts a campus cybershooting mimicking a real-life incident at Virginia Tech. In response, Bugeja explores the issue of university liability for academically-mandated tasks taking place in virtual worlds.

I would sum up the university’s legal liability as follows.

Be proactive. But don’t worry excessively.

This opinion is based on basic criminal and civil law principals applied against the ever-evolving backdrop of online life. As such, although this opinion may prove useful in the present instance, it may prove less so in the future.

Analysis of an allegedly criminal act normally starts at its division into two main components - actus reus, the evil act, and mens rea, the evil thought. Successful criminal prosecution requires satisfactory fulfillment of both elements beyond a reasonable doubt.

An evil act without malevolent thought protects those deemed below the requisite threshold of mental ability to be held responsible for criminal behavior, namely the mentally infirm, young children, etc.

An evil thought without an accompanying act is also not criminal. A bad person who wishes you wrong but does nothing physically or verbally harmful against you may be a cad (a potential adulterer), immoral (a potential corporate thief) or even reprehensible (a potentially violent spouse). However, he is not criminal.

Looking at the facts of the Ohio University case, it appears initially as though the cybershooter fulfilled the mens rea requirement of a criminal act. He (I am assuming it is a “he”) wanted to shoot and kill these other avatars. There were no claims of lack of intention, mistake or accident. There is nothing in Bugeja’s description attesting to any extenuating circumstances that would vitiate the mental element of the crime (e.g. mental infirmity, insanity, excessive youth, etc.).

As for the actus reus, there was no dispute as to whether this particular student committed the evil act in question. The shooter consciously and deliberately logged into his account, procured a weapon, navigated through the campus and shot the other avatars. There were no other perpetrators involved, the shooter’s identity was clear and there were no claims to the contrary.

As a result, there was fulfillment of the mens rea and actus reus requirements. It looks as though the student should be convicted.

Not so fast.

It is at the actus reus stage where the alleged criminality of this act would most likely fall apart according to the tenets of the criminal justice system. In short, because the scene of the incident was a virtual world, there was no direct physical contact between the cybershooter and the victims and, as a result, it would be argued that no truly criminal act was committed. Otherwise, if the opposite was successfully argued, couldn’t the victims of other cyberworlds charge the shooter with manslaughter (e.g. within any role playing “shoot-em-up” game)? Although the incident in question was callous, poorly timed in the aftermath of the Virginia Tech tragedy, and in an environment where violence is normally not expected, extending criminal sanctions and victims’ rights into a virtual world seem far-fetched at present and ripe for appeal. As a result, lower level judges would be reluctant to extend the punitive power of the criminal courts to the jurisdiction of the virtual world despite the emotional harm inflicted. A patently offensive cyberact such as this is regrettable and will hopefully never happen again. But it is still most likely not criminal.

As a result, the criminal law threshold for the case does not appear as though it would be met. But how would this incident play out in the lower threshold of the civil courts?

It would possibly merit an award for damages though it would probably still be unlikely.

Victims could claim emotional suffering as a result of the trauma of being “virtually killed”. However, in a context where so many people have been killed in other online environments this again seems beyond the purview of most civil courts and likely something that would be appealed. And on a practical level, add the fact that most college students have few valuable assets (iPod anyone?) and potentially much higher personal financial liability (e.g. student loan debt, a bill for the latest Manolo Blahniks), most lawyers would shy away from this case on purely financial grounds. Waiting four years to garnish someone’s future wages seems silly.

Bugeja believes that Linden Lab, creators of the Second Life virtual reality world, is fully insulated from liability due to a clause in its terms of service that disallows users from making claims or demands for damages. Also, Bugeja believes that universities are at great risk when promoting virtual-life games within a curricular setting when they omit a clause in course syllabi stating that engaging in virtual worlds is optional and lack of participation will not affect grades.

However, these beliefs are not entirely well-founded.

Professors apprised of the Ohio University incident should proactively add a clause that makes participation in virtual worlds optional. In fact, they should extend this type of preemptive statement to any activity that could result in liability (e.g. class trips, etc.). However, service providers such as Linden Labs appear in a much weaker position with respect to potentially criminal or tortious acts occurring within their world. This virtual environment is a place where the company has created an online setting, delineated membership standards, regulated, provided tools with which to interact as well as derived financial gain. In a legal setting, this would be compared with a university professor who unwittingly sends college students to this site. If you were a judge and felt the need to assign civil liability, would you choose the well-intentioned professor trying to appeal to a new generation of tech savvy learners who only has a cursory knowledge of a website? Or would you choose the highly impersonal multi-million dollar corporation flush with cash that created a tool that a wide swath of people can access and on which they can purchase weapons? Case closed.

In summary, the Ohio University case would probably not be judged as a criminal offence. Due to the perpetrator’s presumed lack of financial assets, a civil case against the cybershooter would probably not even be made. If anybody was going to be liable, it would most likely be a service provider like Linden Labs that would presumably have the responsibility to regulate its environment, vet its members and protect users from “violence”. But even then, due to the virtual nature of any act, and the general pervasiveness of violence and explicit sexual content in the media and technology, no award would normally be made and, if it was, it would be a nominal amount for pain and suffering. Specific threats through e-mail communication against the corporeal integrity of an actual person (e.g. sexual harassment, assault, etc.) would be the most likely scenario to merit criminal prosecution against guilty parties, gain legal protection or earn a monetary award for damages. And for those educators who still want to use virtual worlds within an academic setting, an optional participation clause within the class syllabus should provide adequate protection.

P.S And don’t let the terms of service clause fool you. The warning label “Cigarettes can kill” has not prevented tobacco companies from being sued for billions of dollars. If terms of service clauses provided absolute protection from liability, every single product ever made would have a warning added and consumer rights would be completely eviscerated. Don’t you think the manufacturers of the tainted baby formula in China would have added one of these clauses to their product to protect themselves?

P.P.S. As virtual worlds become more lifelike, technology becomes more integrated with daily life and the division between the two disappears, potential liability will only increase. In the future, all legal bets are off.

References:
Bugeja, M. (2007, September 14). Second thoughts about Second Life. The Chronicle of Higher Education, p. C1. Retrieved September 11, 2007 from http://chronicle.com/weekly/v54/i0303c00101.htm